What is meant by the “rules of natural justice”? To what extent do these rules apply to the conduct of a planning inquiry?
The “rules of natural justice” are uncertain in their content and uncertain in their field of operation. A correspondent (in a letter to The Times) once wrote: “Why are only the judges given copies of the rules of natural justice?”! In making this cry from the heart, he was shrewdly observing that English administrative law (like all branches of the common law) emerges on a case by case basis, so that the rights and duties of the parties are learnt by induction rather than by deduction.
Thus, in the absence of precedent, it is not always easy to state whether or not a decision-maker is under a duty to comply with the rules of natural justice and, if so, exactly what such an obligation on his part will entail. For example, in Central Council for Education and Training in Social Work v Edwards (1978), Association of Polytechnic Teachers Bulletin, March 1986, Slade J had to decide whether a polytechnic was under a duty to interview every qualified student who applied to join its courses. He held that such a duty would be unrealistic because of the scarce resources of higher education and impractical because of the element of time. But, on the other hand, he held that if a polytechnic did grant such an interview, it had to conduct that interview fairly, having regard to the fact that the student’s right to work might depend upon its decision. This decision (and others) supports the view that, even if a public body is not under a duty to act judicially, it may nevertheless be under a duty to act with common fairness.
The essential feature of natural justice is that it grants a fair hearing — or, at least, allows representations to be submitted in writing. This, in turn, requires the decision-maker to be unbiased and to make an adequate disclosure of relevant information to the person who desires to be “heard” (orally or in writing), because no one can adequately make representations about something of which he has been kept in ignorance: Ridge v Baldwin [3] 2 All ER 66, HL. How much more than this may be required from the decision-maker, however, depends upon the nature of the case and the considerations of public policy involved. For example, there is no automatic right to legal representation in every type of quasi-judicial hearing: Pett v Greyhound Racing Association Ltd (No 2) [1969] 2 All ER 221 and Fraser v Mudge [1975] 3 All ER 78. Yet, conversely, it is seldom the case that a decision-maker is forbidden to allow legal representation, and so he must always exercise his discretion (to allow or to disallow lawyers) in a reasonable manner, having regard to the issues involved: R v Home Secretary, ex parte Tarrant [1984] 1 All ER 799 — a case involving prison discipline.
“Natural” justice
The comment has been made several times that the word “natural” does not, in substance, add anything to the word “justice”, except to speculate that the origin of justice predates any particular legal system and to encourage society to believe that justice, rather than injustice, is the natural order of the world. Sir Ernest Gowers, in his book The Complete Plain Words (1954), quotes precepts which were laid down for the civil service of Ancient Egypt, thousands of years ago:
All your doings are publicly known, and must therefore be beyond complaint or criticism. Be absolutely impartial. Always give a reason for refusing a plea; complainants like a kindly hearing even more than a successful plea.
It would be difficult to find a better description of natural justice, even from English case law. Indeed, even English case law is largely centred on the precise application of two maxims from Roman Law (expressing concepts older than Roman Law itself):
(1) Nemo iudex in causa sua: No man must be a judge in his own cause;
(2) Audi alteram partem: Hear the other side! (ie hear both sides to every case).
It is the second rule (above) which also imports the obligation of fair disclosure (as in Ridge v Baldwin).
The aboriginal nature of the rules of natural justice make it possible for the courts to imply these rules in many judicial or quasi-judicial hearings which do not have statutory rules of procedure or which have rules of procedure which are silent on a particular relevant point. Thus, in planning inquiries and compulsory purchase inquiries, the statutory rules do not precisely state when the inspector should grant an adjournment or state how long any granted adjournment should be.
In Performance Cars Ltd v Secretary of State for the Environment (1977) 246 EG 563 there was an appeal against a local authority’s refusal to grant planning permission for a car park and lorry park. At the beginning of the appeal hearing the local authority gave the managing director of the appellant company a bundle of documents on which it intended to rely (including letters from neighbours). The managing director asked for an adjournment of 30 days to consider this evidence. The inspector granted an adjournment of 1 hour 40 minutes (including lunch-break). The Court of Appeal held that the inspector broke the rules of natural justice by granting so short an adjournment. Similarly, in Gill & Co (London) Ltd v Secretary of State for the Environment [7] JPL 373 an inspector was held to have wrongly refused an adjournment when an important witness at a compulsory purchase inquiry had a heart attack shortly before the hearing. Conversely, there is no right to an adjournment merely because the hearing date (of a planning inquiry or compulsory purchase inquiry) falls upon a religious Holy Day — except, perhaps, if the application for the adjournment is made very quickly, before inconvenience is caused to other parties: Ostreicher v Secretary of State for the Environment [1978] 3 All ER 82.
“Mere applications” and “forfeitures”
It is, of course, clear that the rules of natural justice apply to planning inquiries, compulsory purchase appeals and so on. This is supported, rather than undermined, by the statutory rules made for the conduct of such inquiries (eg The Town and Country Planning (Inquiries Procedure) Rules 1974). However, many other types of decision-making are of an administrative nature and do not necessarily require any sort of quasi-judicial hearing in order to be fair. The best analysis of the field of decision-making was made by Megarry V-C in McInnes v Onslow-Fane [8] 3 All ER 211. He identified three separate categories:
(1) “mere application” cases;
(2) “expectation” cases; and
(3) quot;forfeiture” cases.
A “mere application” case is one which involves an application for some benefit or privilege in circumstances where the applicant has no legitimate expectation of being granted a hearing or of being successful in his quest. The facts of McInnes v Onslow-Fane themselves illustrate such a case (an application by a follower of the fancy to become a boxing manager). An “expectation” case is one where, for one reason or another (eg the past conduct of the decision-maker), the applicant has been given a legitimate expectation that his application will be granted or that, at the very least, he will be given a fair hearing before any adverse decision is made in his case.
Thus in Council of Civil Service Unions v Minister for the Civil Service [4] 3 All ER 935 the House of Lords held that civil service trade unions had a legitimate expectation that they would be consulted about any proposed changes in the conditions of service of their members before such changes were introduced. (However, the House of Lords also held that this duty did not extend to the Government Communications Headquarters because of the government’s reasonable belief that any advance notice to the unions might endanger national security at that place.)
A “forfeiture” case is one where the livelihood or property or other established rights of a person are to be taken away (or might be taken away) by the decision-maker. Compulsory purchase cases obviously fall within this category, whereas planning appeals would more closely resemble “mere application” cases but for the statutory rules which make both types of appeal very similar in nature. The well-known case of R v Barnsley Metropolitan Borough Council, ex parte Hook [6] 3 All ER 452 presents an example of a “forfeiture” case. The applicant was a market trader who, when caught out in a minor misdemeanour by a market inspector, gave that inspector a tirade of Billingsgate in reply to his reprimand. The Court of Appeal held that the local authority broke the rules of natural justice by allowing the market inspector to remain in the same room as the licensing committee when (after hearing the market trader’s version of events) they decided to revoke his licence. The continued presence of the market inspector in the same room as the decision-makers blurred his function and made it appear that he was acting both as prosecutor and as judge.
The analysis of Megarry V-C in McInnes v Onslow-Fane is a very useful starting point when it becomes necessary to consider the possible application of the rules of natural justice. These rules do not usually apply to “mere application” cases, unless there are relevant rules of procedure (eg statutory rules) which require a quasi-judicial hearing to be held. Conversely, there is a presumption that the rules of natural justice are applicable to a “forfeiture” case, unless there are relevant (and valid) rules to the contrary. (An example of a forfeiture case where Parliament has expressly excluded the rules of natural justice is the case of the licensing, and delicensing, of gaming establishments: Rogers v Home Secretary [2] 2 All ER 1057.)
The intermediate category of an “expectation case” postulates that the applicant (or other person involved) has a right to have his legitimate expectations honoured, which (in many cases) may extend to granting him a quasi-judicial hearing or at least giving him a right to make representations in writing before a decision is reached.
Notwithstanding the procedural rules which apply to planning inquiries (making them quasi-judicial in nature), it should not be forgotten that the final decision in a planning case is not a judicial decision but an administrative one. Thus it is not wrong in law for the decision-maker to have regard to policy or even (in the case of a government minister) to espouse that policy in public. In Franklin v Minister of Town and Country Planning [7] 2 All ER 289 a government minister made a public speech to a hostile meeting in Stevenage, supporting the decision of the government to designate Stevenage as a new town. During the course of that speech he said the following things:
Stevenage will in a short time become world famous … (Laughter). While I will consult as far as possible all the local authorities, at the end, if people are fractious and unreasonable, I shall have to carry out my duty.
The House of Lords held that the minister had not acted in breach of any statutory duty in considering objections to the plan and, finally, notwithstanding those objections, approving Stevenage as a new town.
However, it should be noted that policy is a good servant but a bad master. A decision can be quashed by the courts if a decision-maker fails to exercise a statutory discretion and, instead, fetters himself by adopting an inflexible policy. Thus in Stringer v Minister of Housing and Local Government [1] 1 All ER 65 the High Court upheld a policy of protecting Jodrell Bank radio telescope from neighbouring development, but emphasised that each planning application had to be considered on its own merits, with a view to making an exception to the general policy if need be.
Of course, a policy which is in itself irrelevant or oppressive can never be the proper basis of a lawful administrative decision. Thus in Roncarelli v Duplessis (1959) 16 DLR(2d) 689 the Supreme Court of Canada awarded damages against the Prime Minister of Quebec (personally) for pressurising the Quebec Liquor Commission into revoking the plaintiff’s liquor licence by reason only of the plaintiff’s being a Jehovah’s Witness (a religious sect to which the Prime Minister was hostile).
Conduct of public inquiries
Whatever may be the freedom of politicians to espouse a political policy, a higher duty of impartiality rests upon inspectors and other persons who are called upon to conduct public inquiries, appeals, and other quasi-judicial proceedings. Thus in Halifax Building Society v Secretary of State for the Environment (1983) 267 EG 79 the High Court quashed an inspector’s decision not to uphold a planning appeal when (according to a sworn affidavit from the appellant’s expert witness) “the inspector gave … the impression that he was seeking to find fault with the appellant’s case while, on the other hand, he appeared to be protective towards the council’s witnesses”. The judge (Woolf J) made it clear that it was not necessary for the appellant to prove that the inspector had actually been biased — in judicial or quasi-judicial proceedings it sufficed if his conduct created a “real impression” that he was not prepared to listen to the appellant’s evidence.
This aspect of natural justice has been well summarised in the famous words of Lord Hewart CJ in R v Sussex Justices, ex parte McCarthy [4] 1 KB 256 at p 259 (a prosecution for a motoring offence where the clerk to the justices was a solicitor acting — in civil proceedings — for another motorist involved in the same collision): “Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
On this point, it should be noted that the rules of natural justice do not cease to operate when a planning inquiry or a compulsory purchase inquiry comes to an end. Those rules apply to the subsequent site inspection, no less than to the hearing itself. Thus in Hibernian Property Co Ltd v Secretary of State for the Environment (1973) 27 P&CR 197 the High Court quashed a compulsory purchase order because the inspector who had conducted the appeal permitted the tenants of the properties concerned to give evidence of their views at the site inspection (after the hearing was closed). The purpose of a site inspection was not to receive or invite new evidence but to inspect the property after all relevant testimony had been given.
Finally, so far as planning inquiries (and similar inquiries) are concerned, it should not be thought that all the practices and procedures of a court room are the same thing as the rules of natural justice. Unlike a judge, the inspector has a wide measure of discretion as to the procedure which he adopts, and he is certainly entitled to receive hearsay evidence (for example, a letter from an absent witness) even though it might not be admissible in a court of law. He is even entitled to receive such evidence in an enforcement notice appeal (where evidence is usually given on oath). Thus in T A Miller Ltd v Minister of Housing and Local Government [8] 2 All ER 633 Lord Denning MR said:
A tribunal of this kind is master of its own procedure, provided that the rules of natural justice are applied. Most of the evidence here was on oath, but that is no reason why hearsay should not be admitted where it can fairly be regarded as reliable…No doubt in admitting it, the tribunal must observe the rules of natural justice, but this does not mean that it must be tested by cross-examination. It only means that the tribunal must give the other side a fair opportunity of commenting on it and of contradicting it.
In fact, whether or not hearsay evidence is involved, the right to cross-examine witnesses at a public inquiry is not an absolute one. In Bushell v Secretary of State for the Environment [0] 2 All ER 608 (a case involving objections to a proposed motorway) the House of Lords upheld the inspector’s refusal to permit cross-examination of Department of the Environment witnesses about the source of traffic predictions which they had made. Lord Diplock said that the relevant circumstances in considering whether cross-examination should be allowed included:
the nature of the topic upon which the opinion is expressed, the qualifications of the maker of the statement to deal with that topic, the forensic competence of the proposed cross-examiner, and, most important, the inspector’s own views as to whether the likelihood that cross-examination will enable him to make a report which will be more useful to the minister in reaching his decision than it otherwise would be is sufficient to justify any expense and inconvenience to other parties to the inquiry which would be caused by any resulting prolongation of it.
In any event, it is not a proper use of a local public inquiry to embark upon a criticism of government policy, unless (as in the recent Sizewell inquiry) the government for some reason or another does not object to ventilating such issues then and there.
